If this president can create a new legal status for aliens unlawfully present under the terms of the Immigration Act, future presidents will have the same authority to employ broad notions of “prosecutorial discretion” to gut the enforcement of whichever laws they dislike—using the excuse that “Congress has failed to act.”

The supporters of DAPA may well rue the day that presidents seized this kind of extralegal authority. Whatever immigration policy any of us may favor—and I, for one, would like to see major reform—we should all be able to agree that the executive branch must follow the law until it has been amended by Congress.

Agreed, says Professor Lederman, but in this case the statute authorizes the presidential actions through broad delegation (a possibility I acknowledged in my prior post on the matter):

So where do Judge Hanen and Professor McConnell go wrong? Simply in this: There is no basis for their underlying assumption that DHS would bestow upon DAPA-eligible aliens certain “benefits” that are not authorized by statute and by pre-existing regulations that have been promulgated pursuant to the notice-and-comment rulemaking process.

Extensive analysis follows.

(Josh Blackman has some different views on statutory authorization here).

The goal of originalism has always been purity. Originalists claim that heir methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method -- the approach that reveals the purest constitutional meaning -- is reasonable-person originalism. These new originalists ask the following question: When the Constitution was adopted, how would a hypothetical reasonable person have understood the text? This Article examines historical evidence from the early decades of nationhood to achieve two goals. First, it demonstrates that reasonable-person originalism is incoherent at its historical core. As an interpretive method, originalism cannot achieve its stated goal: to identify fixed and objective constitutional meanings. Contrary to originalist claims, historical research uncovers contingencies and contexts. More specifically, the evidence shows that reasonable-person originalim is historically unjustified. Early in the nation's history, neither lawyers nor laypersons would have suggested that constitutional interpretation should be based on the views of a hypothetical reasonable person. Second, the Article demonstrates that the historical evidence instead supports an alternative conception of constitutional interpretation. In the early decades, numerous Americans -- including framers, Supreme Court justices, and constitutional scholars -- used an eclectic or pluralist approach to constitutional interpretation. Depending on the case, an eclectic interpreter considered a shifting variety of factors, including original meaning, framers' intentions, practical consequences, and judicial precedents.

As Feldman recognizes, I do not invoke the reasonable person in my defense of public meaning originalism. The best understanding of "public meaning" does not require the invocation of a hypothetical "reasonable person." For example, in order to determine the public meaning of a word or phrase in 1787, we need to examine the relevant linguistic facts--patterns of usage at the time. The best tool for such an investigation is corpus linguistics, which allows the examination of many instances of usage. To the extent that the "reasonable person" could any role in such an investigation it would be purely as a heuristic (a way of thinking about the problem), and not as a normative standard.

The plaintiffs rely on an [Affordable Care Act] section stating that subsidies will be available for certain low-income taxpayers who purchase health insurance from an "Exchange established by the State." They then argue that exchanges created by the federal government are not "established by the State," and therefore the IRS acted illegally by deciding to provide subsidies on federal exchanges. ...

The problem with the plaintiffs’ argument is that it ignores another section of the ACA, which states that, if the states do not create a health exchange as required by the first section, the federal government will establish "such exchange." The authority given to the U.S. Department of Health and Human Services (HHS) is not to create "an" exchange, a "federal" exchange, or a "United States" exchange but quite specifically "such" exchange.

What does the word "such" connote in the context of the law? Given that the entire structure of the ACA relies on three essential components—one of which is the availability of federal subsidies—it is no surprise that the IRS read the statute to allow for subsidies on both state and federal exchanges. The only legal issue is whether the clear language of the entire law makes that reading impermissible because it is an unreasonable interpretation of the statutory scheme. ...

The word "such" according to Black’s Law Dictionary means something "having just been mentioned." This clear parsing of the relevant statutory language shows that the government should win (in both the hypothetical and the real case).

He adds as a second textual argument:

[A]s health law expert Nicholas Bagley has argued, if the law is read as the plaintiffs ... argue, federal exchanges would not be able to provide insurance to anyone. The ACA says that only people who "reside[] in the State that established the Exchange" may purchase insurance from the exchanges. If Congress really meant to distinguish between state-established exchanges and federal exchanges, the law would seem to preclude people residing in a state with a federally established exchange from purchasing insurance from that exchange. Congress could not possibly have intended for HHS to create federal exchanges incapable of selling health insurance.

He also has some purpose arguments, plus Chevron, but apparently the foregoing are the central textual arguments as he sees them. The second of these seems potentially strong (the first one does not move me much).

Professor Adler responds, first emphasizing (as one would expect) the "established by the State" language; he continues:

Section 1321 provides that should a state fail to create the "required exchange"—that is, the exchange required under section 1311—"the Secretary shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements." But this language does not establish the proposition that an exchange established by HHS is an exchange "established by the State." Section 1321 expressly refers to HHS as the entity that must "establish" the exchange and provides that HHS does so "within" the state, rather than on the state's behalf. And were there any doubt that HHS is not a "State" under the ACA, section 1304 expressly provides that "'State' means each of the 50 States and the District of Columbia."

On the second point, Professor Adler responds:

Professor Segall claims that, were the Court to accept the plaintiffs' interpretation of the ACA, "federal exchanges would not be able to provide insurance to anyone" because section 1312 provides that "qualified individuals" must be residents of "the State that established the Exchange." Yet the relevant statutory provision, when read in context, creates no such absurd result and is readily harmonized with the rest of the statutory text. Section 1312's definition of a "qualified individual" who may "enroll in any qualified health plan available to such individual" is—like the other requirements of Part II of Subtitle D (sections 1311 through 1313)—addressed to the states on the assumption that they have complied with section 1311's command that each state establish its own exchange. This requirement is conditioned on the state's cooperation. Should a state fail to cooperate, however, the residency requirement has no effect, as there is no state-established exchange to which it may apply.

I'm interested in King v. Burwell mostly on the question whether it is truly a text versus purpose case, or whether, to the contrary, the government has a strong textual argument. I'm still not sure what to think after these posts.

I also like the case as an example of statutory originalism -- everyone seems focused on the text and the intent of the Congress that enacted it. Professor Segall, for example, relies (in his conclusion) on "clear text and unassailable context" to show what the ACA "intended."

RELATED: Professor Adler links to video of a King v. Burwell event at the Heritage Foundation here (with Carrie Severino of the Judicial Crisis Network, Simon Lazarus of the Constitutional Accountability Center, and Robert Weiner of Arnold & Porter).

This is a book review of Professor Bruce Allen Murphy’s recent biography of Justice Antonin Scalia entitled: Scalia: A Court of One. We show that Professor Murphy’s account of events to which Professor Calabresi was in part a witness is wrong and at times almost blinded by anti-Catholicsm. In addition, we are baffled by Professor Murphy’s utter disregard for Justice Scalia’s contributions to the field of legal interpretation and his mis-understanding of Supreme Court history. All in all, we believe Justice Scalia should be praised for his many accomplishments, his contributions to the law, and his impact on the theories of textual interpretation.

The 21st Century has brought with it a surveillance crisis unprecedented in our history – a crisis that threatens our core values, among them the right to free expression, a free press, protection from unreasonable searches and seizures, and privacy. The crisis also threatens the right of citizens to engage in democratic policy making.

It is a crisis that should surprise no one after the catastrophic events of September 11, 2001, wars in Afghanistan and Iraq, a never-ending so-called War on Terror, and a concurrent, unimaginable technology revolution digitizing our information and communication systems. Indeed, cataclysmic national security concerns coupled with the ability to monitor literally every communication of every American have spawned a generation of offspring with names like Stellar Wind, Prism, Upstream, Manning, Assange, Wikileaks and Snowden.

The article, "Eavesdropping on Our Founding Fathers. How a Return to the Republic’s Core Democratic Values Can Help Us Resolve the Surveillance Crisis", provides a look at the current crisis through the lens of the history that led to the passage of the Foreign Intelligence Surveillance Act (FISA), the legislation that lies at the heart of the current controversy and around which all administrations, Democratic and Republican, and America’s surveillance bureaucracy, the NSA, the CIA, the NDI and the FBI, have danced for nearly four decades. The article argues that a proper balance between legitimate national security interests and the sacred values and civil liberties that buttress America’s democratic institutions and aspirations can be best achieved if the current surveillance landscape is examined through that lens.

In sum, "Eavesdropping on Our Founding Fathers" argues that solutions to the current surveillance crisis lie in a return to core values and first principles that implement the intent of the Founding Fathers to create an adversarial system of checks and balances among the various branches of the government which included bolstering the independence of the judiciary – values and principles which were eloquently argued during the FISA debates. The article examines those debates and details compromises that were made in the final legislation that became FISA – compromises that ultimately undermined FISA and allowed it to become a tool of rather than a check on the Executive Branch whose power the Act was intended to curb.

Most important, "Eavesdropping on Our Founding Fathers" identifies five critical 'lessons learned' that, if followed, can help us resolve the current surveillance crisis.

02/24/2015

Prominent commentators -- among them Ilya Somin, Eric Posner, and Erwin Chemerinsky & Samuel Kleiner -- have defended the President's Deferred Action for Parents of Americans (DAPA) program as an exercise of the President's power of prosecutorial discretion. I'm inclined to agree with their premises. Given limited enforcement resources, the President is entitled to make decisions on enforcement priority, including by designating categories of non-enforcement based on a policy assessment of which violators are most morally deserving (or, put another way, least problematic). True, the President cannot simply refuse to enforce a law across the board, as that would amount to suspending (dispensing with) the law, an action contrary to his duty to take care that the laws are faithfully executed. But so long as the President continues to execute a law against some material number of violators, the fact that he does not execute it against another material category of violators is consistent with his prosecutorial powers and duties.

So, for example, the President's decision not to enforce the federal drug laws against people in states where their actions are legal under state law, while continuing to enforce the federal drug laws in other circumstances, seems defensible. The key is that the President's decision does not change anyone's rights or otherwise alter any law; it is simply non-action. Violating the federal drug laws remains illegal; but for now anyway, the executive branch is going to do anything about certain specified violations.

But that leaves me with the following questions about DAPA:

(1) Suppose, through the actions of a vindictive ICE agent, a person covered by DAPA is slated for deportation. Can that person seek a judicial remedy to block deportation?

(2) A well-respected immigrants' rights website, the National Immigration Law Center, states that "a person granted deferred action is considered by the federal government to be lawfully present in the U.S. for as long as the grant of deferred action status." Is that statement correct?

(3) Under DAPA, a covered person explicitly receives deferred status for three years. That extends beyond the term of the current President. Does DAPA purport to bind the next President? If not, does the three year term have any legal purpose or explanation?

(4) Under DAPA, to receive the three-year deferred status a covered person must submit certain paperwork and pay a fee of around $400. Does the President's power of prosecutorial discretion include the power to impose a fee to obtain it (in effect, to sell indulgences)? Can the executive branch license violations of the drug laws upon payment of a fee in advance?

(5) Upon application and payment of the fee, persons covered by DAPA receive a work permit and a social security number. Does this convey on them a legal entitlement to work, or any other legal entitlement? If not, is there any legal explanation for this process?

(6) Although much of immigration law is reserved to the federal government, the states are allowed to some extent to treat persons in the country illegally differently from persons in the country legally. Does qualification under DAPA change the way a state is allowed to treat the covered person (that is, must the state now treat them as "lawfully present")?

(7) My understanding is that federal law limits the ability of private persons to discriminate against legal immigrants based on their immigration status (that is, e.g., employers cannot favor citizens over lawful aliens). Does qualification under DAPA change the way a private person is allowed to treat covered persons (that is, is an employer barred from refusing to hire them)?

For DAPA to qualify as prosecutorial discretion, I think all seven questions must be answered "no." Otherwise, DAPA seems to be more than non-action. I am not sure, however, that any of them can be answered "no," either as a logical or as a practical matter. If they can be, it would be great for DAPA proponents to say so in unmistakable terms.

To be clear, DAPA may still be constitutional if it is an exercise of discretion conveyed by statutes. But that is different from it being part of the President's constitutional power to execute the law.

02/23/2015

Recently, I gave a talk (along with colleague Maimon Schwarzschild) on Abraham Lincoln at the San Diego Law Library as part of their exhibit on the former President. My talk was entitled “Lincoln: Slavery, Sovereignty, and Secession,” but unfortunately due to time constraints, it was mainly on slavery.

My main point about Lincoln is that his views on slavery were very “moderate” up until the point at which he issued the Emancipation Proclamation. As a matter of policy, Lincoln favored ending slavery, but he wanted such emancipation to be gradual, compensated, popularly enacted, and followed by colonization. In Lincoln’s defense, he believed that any stronger position would have been rejected by the American people and therefore this was the best that could be accomplished for the slaves.

By contrast, there were the abolitionists of the time – people who favored immediate emancipation of the slaves. The abolitionists included William Lloyd Garrison, who believed the Constitution was a deal with the slavemaster devil, and Lysander Spooner, who believed that the Constitution forbade slavery. But the groups associated with both of these men were considered extremists and represented only a small portion of the population.

As a matter of constitutional law, Lincoln believed that the Constitution allowed slavery in states that desired to have it and therefore did not allow the federal government to interfere with such slavery. But he did insist that the Constitution allowed Congress to forbid slavery in the territories. This was key to Lincoln, who believed that if slavery could be prohibited in the territories, the future states would be free ones. And this would put slavery on the defensive and make compensation for emancipation from the rest of the nation affordable.

Lincoln was extreme about his moderate position, drawing a line in the sand as to prohibiting slavery in the territories. For that reason, he strongly opposed the Dred Scott case (which would have made such prohibitions unconstitutional) and announced that he would not follow the case in future.

Ultimately, though, Lincoln ended up supporting immediate, uncompensated emancipation without colonization. The circumstances of the war changed everything. Lincoln could argue that emancipation was necessary for the war, an aim strongly supported in the North. And so the Great Emancipator was born, coming to the position only slowly and over time.

Note: This blog post was originally posted at the Liberty Law Blog. It prompted some controversy in the comments, which led me to add another post responding to those comments.

David Bernstein (George Mason University School of Law) and Ilya Somin (George Mason University School of Law) have posted The Mainstreaming of Libertarian Constitutionalism (Law and Contemporary Problems, Vol. 77, No. 4, pp. 43-70, 2014 (Part of the Symposium on “Law and Neoliberalism”)). Here is the abstract:

Libertarian constitutional thought is a distinctly minority position among scholars and jurists, one that at first glance has little connection with either modern Supreme Court jurisprudence or the liberalism that remains dominant in the legal academy. However, libertarian ideas have more in common with mainstream constitutional thought than at first meets the eye. They have also had greater influence on it.

This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged. This is particularly true on issues of equal protection doctrine and modern “substantive” due process as it pertains to “noneconomic” rights. Here, both the Supreme Court and much of the mainstream academic left have repudiated early twentieth century Progressivism, which advocated across-the-board judicial deference to legislatures. They have also rejected efforts to eliminate common law and free market “baselines” for constitutional rights.

The gap between libertarian and mainstream constitutional thought is much greater on issues of federalism and property rights. Here too, however, recent decades have seen significant convergence. Over the last thirty years, the Supreme Court has begun to take federalism and property rights more seriously, and the idea that they should get strong judicial protection has attained greater intellectual respectability. Moreover, much of libertarian constitutional thought merely seeks to apply to federalism, property rights, and economic liberties, the same principles that mainstream jurists and legal scholars have applied in other areas, most notably “noneconomic” constitutional rights and separation of powers.

02/22/2015

This is from late last year but I somehow neglected to mention it: Edward J. Larson (Pepperdine Law School) has this new book: The Return of George Washington: 1783-1789 (William Morrow 2014). Here is the description from Amazon:

Pulitzer Prize-winning historian Edward J. Larson recovers a crucially important—yet almost always overlooked—chapter of George Washington’s life, revealing how Washington saved the United States by coming out of retirement to lead the Constitutional Convention and serve as our first president.

After leading the Continental Army to victory in the Revolutionary War, George Washington shocked the world: he retired. In December 1783, General Washington, the most powerful man in the country, stepped down as Commander in Chief and returned to private life at Mount Vernon. Yet as Washington contentedly grew his estate, the fledgling American experiment floundered. Under the Articles of Confederation, the weak central government was unable to raise revenue to pay its debts or reach a consensus on national policy. The states bickered and grew apart. When a Constitutional Convention was established to address these problems, its chances of success were slim. Jefferson, Madison, and the other Founding Fathers realized that only one man could unite the fractious states: George Washington. Reluctant, but duty-bound, Washington rode to Philadelphia in the summer of 1787 to preside over the Convention.

Although Washington is often overlooked in most accounts of the period, this masterful new history from Pulitzer Prize-winner Edward J. Larson brilliantly uncovers Washington’s vital role in shaping the Convention—and shows how it was only with Washington’s support and his willingness to serve as President that the states were brought together and ratified the Constitution, thereby saving the country.

The aim of this chapter is to place the longstanding controversy concerning the US Supreme Court (USSCt) adjudication of constitutional issues, and in particular those pertaining to fundamental rights, in comparative context. Moreover, two separate benefits are sought through approaching this familiar subject through a comparative perspective: on the one hand, to allow the foreign reader to obtain a better grasp of American exceptionalism in this area: and, on the other, to afford US constitutionalists with an “outside” look into familiar territory regarding a judicial practice that was once almost exclusively American, but that has become virtually universally adopted since World War Two. Particular attention is given to the most contentious and divisive fundamental rights decisions of the USSCt, and comparison concentrates on the contrast between the centralized hierarchical Kelsenian model followed in much of Europe and the common law approach implemented by the USSCt. Several paradoxes and contradictions are examined in light of foreign constitutional adjudication. Finally, the chapter seeks to shed further light, based on comparative insights, on the tension between ordinary and judicial politics as well as that between morals, mores, law and politics in the context of constitutional adjudication.